Opinion
No. 96-7564-A-1
June 29, 2002
SUPPLEMENTAL MAGISTRATE JUDGE'S REPORT
This matter is before the court on motions for partial summary judgment filed by defendants Ethyl Corporation and Albemarle Corporation. Record document numbers 68, 71, 75, 79, 83, 89, 92, 95, 98, and 101. The motions are opposed.
Ten plaintiffs filed this action against the defendants alleging discrimination in employment under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et seq., and supplemental state law claims under the Louisiana Employment Discrimination Law (LEDL), LSA-R.S. 23:332.A. Plaintiffs Reginald F. Clark, David Claypool, Thomas M. Collins, Thomas R. Grossheim, Philip Jackisch, James McKechnie, Robert C. Reid, Edward D. Sellers, Dorothy Taylor, and Mack Webster each alleged adverse employment actions by the defendants in connection with a reorganization and reduction in force that occurred in late 1993. Defendants contended that the employment actions in question were motivated by legitimate, nondiscriminatory business reasons and that the age of the plaintiffs was not a factor in their decisions. After a magistrate judge's report issued March 30, 2001, the district judge entered a ruling which granted the defendants' motion to exclude the testimony of Thomas N. Daymont, the plaintiffs' statistical expert, and also denied the plaintiffs' motion to reconsider this ruling. The district judge then referred the summary judgment motions back to the magistrate judge for a new report and recommendation.
Plaintiffs' alleged age discrimination claims under state law by citing the Louisiana Commission on Human Rights Act. Plaintiffs' petition, paragraphs II and V.
State law claims of age discrimination are governed by the same principles as claims under the ADEA. See, LaBove v. Raftery, 802 So.2d 566, 572-73 (La. 2001); Deloach v. Deichamps, 897 F.2d 815, 818 (5th Cir. 1990).
Jackisch is deceased, and his claim was brought by his daughter Rita Pawlak.
Record document numbers 229 and 239.
In light of the district judge's ruling, this expert evidence cannot be considered in evaluating the summary judgment record. There has been no change in the law since the magistrate judge's report was issued in March 2001. Thus, it is unnecessary to recite here again the applicable law governing summary judgment in cases brought by individuals under the ADEA. That portion of the previous report is incorporated by reference in this report.
Defendants' arguments to exclude other summary judgment evidence on grounds of hearsay and lack of authentication are unpersuasive. For example, the defendants complain that the statements of Fred H. Speno are hearsay because at the time of his deposition, he was no longer employed by the defendants. Yet, the defendants also rely on Speno's deposition testimony. Moreover, it is evident that the statements the defendants claim are hearsay were made to Speno by other employees or concerned matters in the course and scope of his employment duties during the relevant time period.
Defendants' argument that the court should not consider Speno's notes is also rejected. These notes were produced as a result of the court's ruling on plaintiffs' motion to compel discovery issued May 17, 1999. Record document number 65. Speno's notes (plaintiff's exhibit 10) which the defendants claim are unauthenticated were identified and explained by Speno during his deposition, (Speno III deposition, pp. 4-15), and some of this evidence was also cited by the defendants as part of their summary judgment motion.
These and other evidence objections are addressed as needed in the remainder of this report.
Record document number 189, pp. 2-6.
Prescription of LEDL Claims and Other Common Issues
In each of their motions for partial summary judgment the defendants asserted that any claims of age discrimination under state law are prescribed. Defendants also asserted that the plaintiffs do not have any evidence to support their allegation that they were subject to discrimination in their raises and salaries because of their age. In their reply memoranda, the defendants contended that summary judgment on these issues is warranted because the plaintiffs waived their right to object to dismissal of these claims by failing to address them in their oppositions to the motions.
On the issue of salary, the defendants' argument has merit. Defendants specifically raised the issue of salary discrimination in each motion and the plaintiffs failed to respond to the argument or cite any evidence to demonstrate that there is a genuine issue for trial. Thus, summary judgment is appropriate on this issue as to all ten plaintiffs.
Plaintiffs alleged in paragraph XXXVIII of their complaint: "On information and belief, ETHYL practiced age discrimination by granting increases in pay to older employees less frequently than to younger employees. Additionally, older employees received lower pay raises than did the younger employees."
Defendants advanced their prescription argument, in a footnote, as an alternative to their motion on the merits. It would not be appropriate for the court to find that the plaintiffs waived any opposition to dismissal of their state law claims based on prescription when that argument was buried in one of approximately 50 footnotes in the defendants' supporting memoranda.
Defendants also contended that any allegation that they engaged in a pattern or practice of age discrimination in carrying out the reduction in force (RIF) should be dismissed either because the issue was not raised in the EEOC charge or because there in no evidence to support this allegation. A review of the jurisprudence and the record in this case establishes that there is no basis to dismiss any of the plaintiffs' claims on this ground.
Plaintiffs alleged in paragraph XXXVII that: ETHYL and/or ALBEMARLE intentionally engaged in a pattern and/or practice of discriminating against all of the Plaintiffs (excluding Rita Pawlak) and Philip F. Jackisch based upon their age because the Defendants targeted employees over the age of forty (40) for termination as part of an alleged reduction in force in the Fall of 1983.
A pattern or practice claim is not a recognized as a separate cause of action, but is merely another method by which disparate treatment can be proven. It is evident from the plaintiffs' complaint and the summary judgment record that the plaintiffs' claims are claims of individual disparate treatment in violation of the age discrimination laws, which are analyzed under the McDonnell Douglas burden shifting framework. Neither the plaintiffs' complaint nor their arguments indicate that they are attempting to assert a separate "pattern and practice" claim of age discrimination.
Allegation of a pattern or practice of discrimination is not a separate and free-standing cause of action, but is actually merely another method by which disparate treatment can be shown. The "typical pattern or practice discrimination case is brought either by the government or as a class action. See, Celestine v. Petroleos De Venezuella SA, 266 F.3d 343, 355-56 (5th Cir. 2001).
Finally, as to plaintiffs Clark and Taylor, the defendants made the argument that summary judgment was warranted dismissing all of their claims because they failed to mitigate their damages. The employer has the burden of proving a failure to mitigate damages. A review of the summary judgment record as to these two plaintiffs shows that the relevant facts underlying this issue are disputed. Moreover, the defendants argued that the record establishes that the failure to mitigate precludes any recovery of back pay, but did not address any of the other forms of relief available under the ADEA such as reinstatement and front pay.
Sellers v. DelZado College, 902 F.2d 1189, 1194 (5th Cir.), cert. denied, 498 U.S. 987, 111 S.Ct. 525 (1990).
Other than to urge again that the plaintiffs' state law claims were prescribed, defendants also failed to address the mitigation issue in the context of the plaintiffs' state law claims.
Reduction in Force as a Result of Albemarle Spin Off
Plaintiffs did not dispute any of the basic background facts related to the reorganization, RIF and spin off that resulted in the creation of Albemarle as a separate corporation. Ethyl reorganized its chemicals division effective July 1, 1993, and on September 16, 1993, announced it would spin off the chemicals division as Albemarle Corporation. On October 15, 1993, a special retirement offer was made available to Ethyl employees age 55 or over with five years of pension qualification service as of January 1, 1994. At the same time Ethyl announced the RIF. Plaintiffs did not dispute the defendants' explanation of these events or justification for the spin off and RIF. Plaintiffs do dispute the defendants' proffered reasons for selecting them for elimination in the RIF, and contend that the defendants' reasons were not legitimate, but rather were unlawfully motivated by consideration of their age in violation of the ADEA. Defendants did not dispute the first two elements of each plaintiffs' prima facie case, conceding that the plaintiffs were in the protected age group and that they suffered an adverse employment action.
See, defendants' exhibit 1, affidavit of John G. Dabkowski. Dabkowski's affidavit was submitted with each motion for partial summary judgment.
Decisionmakers and Positions v. People
Defendants argued emphatically in every summary judgment motion that neither E. Gary Cook nor Fred H. Speno were central decisionmakers in the RIF. Therefore, defendants maintained, the only evidence relevant to pretext and discriminatory motive was that which could be connected to the various supervisors in each of the departments affected, i.e., supply chain, sales, research and development, etc. However, the defendants' arguments belie their own summary judgment evidence which shows that the process was an ongoing, interactive one, involving Cook, Speno and the global leadership team, as well as the managers and supervisors in each department or unit who reported to these individuals. There were numerous and regular meetings and discussions during this period in which these supervisors and managers consulted with and advised each other and in turn had meetings with Speno and Cook. The evidence clearly demonstrates that the purpose of these meetings was to make decisions regarding reorganization, eliminating both positions and particular employees, and deciding which employees would be "redeployed." In his position Cook was central to this process. He initiated and imposed the new organization structure, directed the global leadership team, and tightly controlled the filling of any vacant positions which occurred during the reorganization. Cook conceded that he would initiate one-on-one conversations "in the normal counsel of business" with company officers and heads of departments concerning their plans for retirement.
Cook came to Ethyl in January 1992, and held the positions of senior vice-president, president of the chemicals group, and member of the board of directors. After Albemarle officially formed he became its president and chief executive officer. Cook I deposition, pp. 10-13. Cook began to explore and plan the reorganization, RIF and spin off of Albemarle in early 1992. Id. at 30-31. Cook formed the global leadership team as an operating structure in anticipation of the formation of Albemarle. Id. at 40, 41, 48. In his deposition, Cook explained in detail the decisions of restructuring and reorganizing which occurred in 1992 and 1993 which were a prelude to the announcement of the RIF and spin off of Albemarle. See, for example, Cook I deposition, pp. 50-68, 72-81. Cook left Albemarle in June 1996. Cook I deposition, p. 146.
Speno was Albemarle's vice president of human resources. The last job title Speno held with Ethyl corporation was director of training and development, and in that position he reported to Henry Page. He was on temporary assignment in the capacity of human resources advisor to Cook from early August 1993 until Albemarle was officially formed. In that capacity he advised Cook, was a member of the global leadership team, and advised and consulted with the team and the other managers in developing the organizational structure, and making the position and personnel decisions to carry out the RIF. Speno I deposition, pp. 6-16; Cook I deposition, pp. 96, 97.
The following is a nonexclusive list of the summary judgment evidence which demonstrates a genuine dispute for trial on the issues discussed in this portion of the report. Relevant Decisionmakers: plaintiff's exhibit 59 (defendants' amended answer to plaintiffs' first set of interrogatories, numbers 3-7); plaintiffs' exhibit 44; Cook I deposition, pp. 45, 46, 52-56, 73-75, 89-91, 95-97, 137-146, 153, 204-207, 217-224, 248, 249; Susan Leonardi's deposition, pp. 27-32, 108, 109, 114; James Rodney Chastain's deposition, pp. 66-70, 88-100, 102, 103, 109-113, 170-173; Leo Broder's deposition, pp. 74-76, 80-82, 190-92; John T. Marvel's deposition, pp. 37-46; 108, 109; Victory L. McDearman's deposition, pp. 38, 39, 47-55, 96-100, 105-106; Speno I deposition, pp. 106, 115-121, 185, 186, 194-196; Speno III, deposition, pp. 36, 38, 90, 92, 112-117, 121; Rudi Demeuse's deposition, pp. 73-77, 80, 85-87, 165, 176-180; C.L. Taylor's deposition, pp. 165-171; John Dabkowski's deposition, pp. 89, 90, 95, 105-119; 168-171. People v. Positions: Cook I, pp. 104-107, 126, 181-188, 204-207, 243, 248, 249; Cook II, p. 64; Chastain's deposition, pp. 102, 103, 109-112, 148, 149; Broder's deposition, pp. 190-92; Marvel's deposition, pp. 18, 88-90 (exhibit 5 included); Demeuse's deposition, pp. 84-87, 176-180; McDearman's deposition, pp. 151-152; Dabkowski's deposition, pp. 34, 84-86, 105-110; Leonardi's deposition, pp. 66, 100-102, 104-105, 108-109, 114, 150-154; Speno I deposition, pp. 185, 186, 194-196.
Cook I deposition, pp. 41-46, 52-54.
Defendants also consistently asserted that Cook made no redeployment decisions. Yet, the summary judgment record established that he tightly controlled these decisions, and there is evidence from which a reasonable inference could be drawn that in making these redeployment decisions he was aware of the particular employees being considered to fill vacant positions. There is also evidence from which a reasonable jury could find that Cook made his decisions while aware of which employees were being eliminated or transferred into other positions. There is clearly a sufficient amount of evidence to conclude that Cook was not a mere rubber stamp for the recommendations made by the members of the team and the other managers. The evidence also showed that Speno was closely involved in the process. The managers went to him first to provide information to him and to discuss their proposals. Speno testified that his notes reflected his discussions with these individuals. Speno's notes are relevant to the issue of pretext and discriminatory animus.
Speno III deposition, pp. 36, 38, 90, 92, 112-117, 120-126.
In summary, the defendants' own evidence demonstrates a genuine dispute as to who the relevant decisionmakers were as to each plaintiff. There can be more than one decisionmaker whose words, actions and motives are relevant to a particular employment decision. Who influenced or made an employment decision is a question of fact. The summary judgment record clearly contains disputed issues of material fact on this critical question. Given this genuine dispute and the record as a whole, evidence as to the statements and actions of all these individuals cannot simply be disregarded in evaluating the appropriateness of summary judgment as to the plaintiffs' claims of age discrimination.
See, Haas v. Advo Systems, Inc., 168 F.3d 732, 734 (5th Cir. 1999); Gee v. Principi, 289 F.3d 342, 346-47 (5th Cir. 2002) (employee may cite to evidence which creates a genuine dispute for trial on the question of whether others had influence or leverage over the official decisionmaker); Mato v. Baldauf, 267 F.3d 444, 449-50 (5th Cir. 2001), cert. denied, ___ U.S. ___, 2002 WL 341576 (U.S. June 17, 2002) (plaintiff can demonstrate that others had influence or leverage over official decisionmaker; degree to which an executive's decision is based on his own independent evaluation is a question of fact); see also, Russell v. McKinney Hosp. Venture, 235 F.3d 219, 227-29 (5th Cir. 2000); Rios v. Rossotti, 252 F.3d 375 379-80 (5th Cir. 2001).
Defendants also repeatedly emphasized that people were not targeted but rather the positions they occupied were eliminated. Again, the defendants' own summary judgment evidence demonstrates that there is clearly sufficient evidence from which a reasonable inference could be made contrary to the defendants' arguments, and that part of the focus in implementing the RIF was the elimination of particular individuals. On summary judgment the court is prohibited from adopting the defendants' view of the evidence when there is sufficient evidence to create a genuine dispute for trial.
Defendants acknowledged the existence of the "people v. positions" issue in virtually every reply memoranda filed, as well as the inconsistent evidence which could support an inference contrary to the view advanced in their summary judgment motions. See, defendants' footnote discussion in their reply memoranda, record document numbers 150, 152, 154, 156, 158, 160, 167, 171.
Individual Plaintiffs
Due to the voluminous summary judgment record, it is difficult to cite every bit of evidence which contributes to the ultimate conclusion that there is a genuine dispute for trial. Yet, it is clear after review of the entire summary judgment record as a whole, that under the Reeves standard the plaintiffs have directed the court to evidence which adequately demonstrates that the defendants are not entitled to summary judgment. The following paragraphs present some of the evidence relevant to each plaintiff and a brief summary of the reasons why summary judgment is not appropriate.
Dorothy Taylor, Edward Sellers, Mack Webster
Taylor, Webster and Sellers all held positions in the supply chain's logistics group and were supervised by Marvin A. Crane, director of logistics. Crane reported to Charles L. Taylor, general manager of the supply chain and a member of the global leadership team. Therefore, in addition to reviewing the summary judgment evidence submitted as to these three individual claims, the evidence must also be viewed in light of the undisputed fact that these two supervisors were involved in the employment decisions regarding these individual plaintiffs.
Speno I deposition, pp. 16, 17.
Defendants identified both Crane and Taylor as decisionmakers in their discovery responses. Plaintiff's exhibit 59, defendants' amended answer to plaintiffs' first set of interrogatories, numbers 3, 5, 6.
Taylor was 68 years old at the time of the RIF. Taylor held the position of secretary in the supply chain's logistics group. Defendants' nondiscriminatory reason for eliminating Taylor was that the reduced workforce in logistics meant that there was no longer a need for two secretarial positions. According to the defendants, because Taylor did not have the computer skills to function as the only secretary, the decision was made to eliminate Taylor and her position rather than the other logistics secretary, Judy Nation. Nation was 40 years old. Crane chose her to fill a secretarial position in logistics in September 1993, shortly before the RIF was announced in October, and after Nation's position as secretary in the finance department was eliminated. Defendants asserted that Taylor cannot rebut the evidence that her secretarial position needed to be eliminated and that Taylor lacked the skills to be retained in the one position that was left.
Defendants' exhibit 3, affidavit of Martha Watson, Taylor's date of birth is July 6, 1925.
A review of the summary judgment record establishes that there is sufficient evidence to create a genuine dispute for trial on the question of whether Taylor was subjected to an adverse employment action because of her age. The evidence is found in the documents and the deposition testimony of Crane, Leonardi and Taylor. As a whole, this evidence reveals vague and inconsistent explanations for selecting Taylor rather than Nation for the RIF, without any input from her immediate supervisor Crane. Noticeably, Taylor's name was also listed in Speno's supply chain notes with not only her years of service but her age, written in the column adjacent to her name. On these facts a reasonable jury could infer pretext and a discriminatory motive.
The following is a nonexclusive summary of the evidence which illustrates that there is a genuine dispute for trial: C.L. Taylor's deposition, pp. 71, 72, 91-97, 176; Leonardi's deposition (defendants' manager of human resources), pp. 13-24, 49-52, 55, 72-87, 136, 137; Dorothy F. Taylor's deposition, pp. 44, 45, 88, 172-74, 130, 221, 222; plaintiffs' exhibits 10, 12 and 59; Crane's deposition, pp. 23, 39-44, 52-59, 64-71, 86-88, 94, 123, 129, 137, 142, 152, 162, 163-170. Crane was director of logistics, and was supervised by Charles L. Taylor, who reported to Cook. Crane's deposition, pp. 11, 19, 20, 31.
Another specific example: C. L. Taylor testified in his deposition that in determining that Taylor did not have the skills for the remaining secretarial position, one of the individuals he conferred with was Leonardi. However, Leonardi stated that she was not consulted and had no prior knowledge of the RIF, was on vacation when it was announced, and found out about it when she came back to town. C.L. Taylor's deposition, pp. 91-97; Leonardi's deposition, pp. 19-24, 69.
Mack Webster was 60 years of age at the time of the RIF. He also worked under Crane and Taylor and held the position of transportation coordinator in the logistics group. Defendants' nondiscriminatory reason for terminating Webster was that his position could be eliminated and Crane knew that Webster wanted to retire and would receive increased benefits by retiring. Defendants asserted that Webster has no evidence that these reasons were false, and no evidence that his age was the real reason for the decision. To the contrary, there is evidence which could cause a reasonable jury not to believe the defendants' legitimate nondiscriminatory reasons and find that his age motivated the employment decision regarding Webster. Defendants discussed some of this evidence in their memoranda and attempted to explain and interpret it in the light most favorable to them. Defendants' approach goes against the well-established rules governing summary judgment.
Defendant's exhibit 4, affidavit of Martha Watson, Webster's date of birth is given as January 19, 1933.
Record document number 97, p. 16.
The following summary judgment evidence illustrates that there is a genuine dispute for trial: Webster's deposition, pp. 68-78, 93-100; plaintiff's exhibit 18, Webster's affidavit; Leonardi's deposition, pp. 59-69; Crane's deposition, pp. 63-70, 75, 78-82, 100; C. L. Taylor's deposition, pp. 24-25, 123-133; defendant's exhibit 9, Taylor's affidavit.
See, record document number 97, pp. 21-23. Contrary to the defendant's assertions, the evidence regarding Webster's retirement or desire to retire is not the only evidence relied upon by the plaintiff. For example, there is also the disputed and conflicting evidence found in the affidavits and deposition testimony of Webster, Leonardi, Taylor, and Crane regarding the position in Richmond, Virginia.
Edward D. Sellers was 59 years old at the time of the RIF. In 1993 he held the position of distribution projects advisor in logistics. Crane was his supervisor. The evidence cited in Sellers' opposition and reply memoranda is sufficient to demonstrate that the defendants are not entitled to summary judgment as to this claim. Defendants maintained that the RIF in the supply chain necessitated the elimination of Sellers' position and that his duties could be absorbed by other employees. Defendants repeatedly asserted that Sellers did not present any facts which create a genuine dispute for trial. Yet again, the defendants proceeded to take the evidence which could support inferences in Sellers' favor, and either discounted it or argued that the court should draw the inferences favorable to them rather than Sellers.
Defendant's exhibit 3, affidavit of Martha Watson, Sellers date of birth is October 16, 1934.
See, record document numbers 111 and 176.
Record document number 94, p. 15.
James McKechnie and Philip Jackisch
McKechnie and Jackisch were both employed in the large department of research and development. In addition to their direct supervisors they both served under department head Jack Marvel. Defendants' interrogatory responses identified both Marvel and Leo E. Broders Jr. as involved in the meetings, discussions and decisionmaking process regarding McKechnie. Although Jackisch was excluded from these responses, the evidence supports a reasonable inference that Marvel's statements and actions were also relevant to the decision regarding Jackisch. Defendants acknowledged in their memorandum in support of the motion that the decision was made by a "consensus" of the research and development management staff, which included Marvel.
In the relevant time period, Marvel was the corporate vice president of research and development, and was on the global leadership team that met regularly with Cook. Marvel's deposition, pp. 14, 15, 18-21, 106; Speno I deposition, pp. 15-19.
Plaintiff's exhibit 59; see also, Broder's deposition, pp. 81, 82, 85, 86; Marvel's deposition, pp. 108, 109.
Record document number 70, p. 4; defendants' exhibit 4, Broder's affidavit.
McKechnie, who was 56 years old at the time the RIF was implemented, held the position of senior accountant in research development and finance. McKechnie's supervisor was Ron Perkins, who reported to Broders, the manager of research and development administration and finance. Above Broders in the chain of command was Marvel who held the position of vice president of research and development. Defendants' legitimate, nondiscriminatory reason for eliminating McKechnie was that his position was no longer needed because of increased computerization and reallocation of his accounting duties. Defendants claimed that any of McKechnie's remaining duties were assumed by Perkins, his older supervisor.
Defendants' exhibit 2, affidavit of Martha Watson. McKechnie's date of birth is February 28, 1937.
Marvel's deposition, pp. 29, 30.
Broders' deposition, p. 64.
In response, McKechnie has pointed to sufficient evidence in the summary judgment record from which a reasonable jury could find that these justifications for eliminating McKechnie are unworthy of belief. Marvel's statement about a "younger person," as well as the affidavits and depositions of Broders, Perkins and Marvel, when viewed in the light most favorable to the plaintiff, are vague and inconsistent on the question of the status of McKechnie's job duties and whether a substantially younger individual assumed all or any of these duties.
The following is a nonexclusive list of the evidence which demonstrates that there is a genuine dispute for trial: McKechnie's deposition, pp. 6, 7, 39-41, 62, 79-82, 125, 145-150, 239; Marvel's deposition, pp. 48, 66-68, 108, 109; Perkins' deposition, pp. 19-21, 34-36; defendants' exhibit 3 (attached to reply memorandum).
Marvel testified regarding McKechnie on pages 67 and 68 of his deposition:
My understanding was that particular position was picked because you could take some of the more complicated duties that were done by that person and Perkins felt he could [sic] them with automation help and so on, and the less complicated issues could be taken on by a younger person doing those things again because of automation issues.
The younger individual at issue is Wame N. Waggenspack whose date of birth is August 3, 1949. Defendant's exhibit 2, affidavit of Martha Watson.
Jackisch was 58 years old and his job title in the department was senior research and development specialist. Defendants asserted that Jackisch was eliminated because of his poor job performance, and he was not replaced by another employee. Sufficient evidence was presented from which a jury could reasonably find that this explanation is not credible. This evidence includes the timing of the performance evaluations, the content of those evaluations, and whether Jackisch was replaced by a substantially younger person.
Defendants' exhibit 3, affidavit of Martha Watson. Jackisch's date of birth is July 25, 1935.
The following summary judgment evidence illustrates that there is a genuine dispute for trial: plaintiff's exhibits 22-26 (exhibits 24 and 25 were discussed in Broders' deposition); Cook I deposition, pp. 189-92; Droders' deposition, pp. 35, 36, 63, 64, 79-81, 185, 186, 192, 193; Marvel's deposition, pp. 16-18, 42-48, 69-74; defendants' exhibits 4, 6 and 7; defendant's exhibits 1-5, 8 (attached to reply memorandum). The younger individual at issue is W. S. Park. Park's date of birth is January 21, 1949. Declaration of Martha Watson, defendants' exhibit 6 attached to reply memorandum. Park was 44 years of age at the time of the RIF.
Defendants' argument that the court must not consider some of the documents related to Jackisch because they are not authentic is rejected. It is evident that these documents were produced and/or discussed by the defendants during discovery. Furthermore, the defendants relied on summary judgment evidence, including affidavits, which referred to some of these documents in support of their own motion, and did not present any facts which indicate that the documents are something other than what they appear to be, or did not come from their own files and records. See for example, plaintiffs' exhibit A, in globo (attached to plaintiffs' consolidated sur-reply memorandum).
Thomas Collins
Collins was 60 years of age at the time of the RIF and held a sales position in the business unit headed by James Rodney Chastain, who was also a member of Cook's global leadership team. Chastain, N. Scott Presley, Cook and Speno were identified in discovery responses as the individuals who attended meetings, provided input, or participated in the decision to terminate Collins. McDearman was also identified by Chastain has being involved in the employment decision.
Defendants' exhibit 3, affidavit of Martha Watson. Collins date of birth is July 2, 1933. Chastain's deposition, p. 65; Speno I deposition, pp. 16-20.
Plaintiff's exhibit 59.
Chastain's deposition, pp. 68-70, 96-98, 100, 160-161.
Defendants contended that Collins has no evidence to rebut the proffered legitimate reasons for terminating him — his position could be consolidated with other sales positions, and he was one of the lowest performing salespersons. However, the summary judgment record reveals the defendants' variable explanations for terminating Collins. These differing explanations, along with all the other evidence cited in Collins' opposition and reply memoranda, demonstrate that the plaintiff has presented sufficient evidence to create a genuine dispute for trial.
Record document number 85, p. 14.
Some of the most notable evidence cited by Collins was his name included in Speno's notes (plaintiff's exhibit 10, Speno III-C) with his age and years of service written immediately adjacent to his name, the indication of the sales opening prior to the announcement of the RIF, and the transfer notation next to the name of Bohn. Speno III deposition, pp. 26-37. Also notable is the statement about Collins made by McDearman in his deposition. McDearman's deposition, pp. 124-125:
I needed a person to help me develop a business and an understanding of the market and supply and demand and competitor situation and Tom is what I would call an old peddler, you know, just an old sales guy that — old is the wrong word considering this case. I meant Tom's just a sales guy and I needed, you know, I needed a business type guy to give me some market analysis, competitor analysis, help me develop the kind of market shares we ought to be after and so forth, help me analyze this distributor network you've got here because I'm going to put some direct salesmen so you all can get rid of these distributors. I need a businessman.
Reginald F. Clark
In October 1993 Clark was 66 years old. Clark was employed as a product sales manager in the specialty chemicals department. John Dabkowski was the general manager of this business unit. He was also a member of the global leadership team. Clark reported to Brian Landry, who in turn reported to Dabkowski. Defendants stated that the legitimate nondiscriminatory reason for eliminating Clark was twofold. According to the defendants, prior to the RIF there were two product managers in specialty chemicals, Clark and Jeff King. The RIF required the elimination of one of the positions. Dabkowski determined that Clark should be eliminated because of the reallocation of the majority of his duties to other groups, and the fact that he considered Clark the weakest performer in specialty chemicals. Therefore, he chose Clark for elimination rather than the 30 year old King.
Defendants' exhibit 4, affidavit of Martha Watson. Clark's birth date is February 24, 1927.
Dabkowski's deposition, pp. 28-30.
Record document number 100, p. 19. King's date of birth is September 25, 1963.
In summary, the quality and quantity of the summary judgment evidence cited by Clark is clearly such that a trier of fact could reasonably infer that the legitimate nondiscriminatory reasons presented by the defendants are unworthy of belief. In general this evidence reveals the problematic circumstances and timing of the transfer of King, the defendants' questionable actions regarding the evaluation of Clark's performance, and inconsistent statements as to the reasons for his elimination. Clark's name, age and years of service, with no indication of performance problems was also included in the lists kept by Speno. As a whole the evidence creates a substantial jury question.
See, for example: Dabkowski's deposition, pp. 52-149, 153-157, 168-171, including exhibits Dabkowski 1-9; Leonardi's deposition, pp. 155-168; Marvel's deposition, pp. 115-116; Perkin's deposition, pp. 69-73; Clark's deposition, pp. 69-71, 89-91, 98, 115-117, 137-140, 172-174, 207-209, including corresponding exhibits attached to the deposition.
At the time of his transfer to product manager, King's supervisor, B. B. Hogue, gave Kind a scathing evaluation. This document was dated October 12, 1993, three days before the announced RIF, and addressed King's performance in the time period immediately prior to his transfer. Dabkowski's deposition, pp. 116-117, exhibit 9. Defendants' argument that the "Hogue memo" is not competent summary judgment evidence is unpersuasive. During his deposition, Dabkowski stated that he had seen the memorandum. Id. The memorandum is on the defendants' letterhead and was produced by the defendants during discovery. Again, the defendants did not offer any facts which called into question its authenticity or indicated that it was not one of the defendants' own internal documents.
Plaintiff's exhibit 10, Speno III-B.
Robert C. Reid
Reid held the position of senior sales associate and was 46, almost 47 years old at the time of the RIF. In their interrogatory responses the defendants identified Cook, Speno, and McDearman as the individuals who were involved in the discussion, meetings, and decision which resulted in the adverse employment decision regarding Reid. According to the defendants, with the reorganization of Ethyl's chemicals division effective July 1, 1993, Reid really had no position under McDearman. However, McDearman continued to count Reid amongst the individuals who reported to him, and attempted to find Reid another position in the company. McDearman contended that he was unsuccessful in doing so because of Reid's reputation as someone who did not work well with others. Thus, in his department McDearman chose Reid for elimination. Around the time of the RIF, Reid's duties regarding ibuprofen sales and market development were less valuable and diminishing. The remaining sales and marketing duties Reid had at the time he was eliminated were then absorbed by Jon Karlin and Charles Weidig in pharmaceuticals.
Defendants' exhibit 1, affidavit of Martha Watson. Reid's date of birth is November 17, 1946.
Plaintiff's exhibit 59, defendants' amended answer to plaintiffs' first set of interrogatories, numbers 3, 5, 6. Other summary judgment evidence also supports this conclusion. Plaintiff's exhibit 10, Speno III-F; Speno III deposition, pp. 57-65; McDearman's deposition, pp. 45-51, 74-86, including exhibit 1(a).
See, Defendants' exhibit 3, McDearman's affidavit; McDearman's deposition, pp. 77, 84-94, 105-106, 134-136; defendants' exhibit 5, affidavit of David Iddins.
Reid's name was included in Speno's notes, with his age and years of service written next to his name, along with the name of W. K. Hayes, with his age listed as 62 and a notation about retirement. McDearman, who made the age-related comment in his deposition about Collins, was a key decisionmaker regarding Reid. These facts, as well as the defendants' inconsistent explanations for Reid's elimination, when viewed as a whole and in the light most favorable to the plaintiff, constitute sufficient evidence to preclude summary judgment as to Reid's claim.
See, in addition to evidence cited in footnotes 48 and 49: McDearman's deposition, p. 124; Leonardi's deposition, pp. 26-28, 64-66, 193-201, along with attached exhibits 9 and 10. Defendants' EEOC response to Reid's charge of discrimination did not include any explanation regarding the placement of Keitt Wannamaker in the position of ibuprofen product manager. Reid's deposition, (Reid I), pp. 153-170. Wannamaker, whose date of birth is August 8, 1963, defendants' exhibit 1, Watson affidavit, was substantially younger than Reid.
David Claypool and Thomas Grossheim
Claypool and Grossheim were part of the olefins and derivatives unit. Demeuse, the general manager of the olefins and derivatives unit and a member of the global leadership team, submitted a plan to reorganize the unit and reduce the number of positions. After Demeuse discussed his plan with chemical's president Cook, vice president Dick Betlem, and Anthony Parnell, Demeuse's plan was modified and only two positions were eliminated instead of six. The individuals chosen for elimination were Claypool and Grossheim.
Demeuse's deposition, pp. 25-28, 35-36, 40-41.
Demeuse's deposition, pp. 87-158, including exhibits 1a-1d.
Claypool was 52 years old when the RIF was implemented. The events leading up to Claypool's elimination, the evidence from which a reasonable inference could be drawn that his responsibilities were given to a substantially younger person, and the conflicting and contradictory evidence regarding Claypool's redeployment, are sufficient for a reasonable trier of fact to infer pretext. Along with the first two elements of the prima facie case, this is evidence from which the trier of fact may infer the ultimate fact of discrimination.
Defendants' exhibit 2, affidavit of Martha Watson. Claypool's date of birth is May 22, 1941.
The substantially younger individual was Steve Mattox, age 31. His date of birth is August 21, 1962. Defendants' exhibit 2, Watson's affidavit.
See evidence cited in plaintiffs' opposition memoranda. Record document number 111, pp. 58-63, record document number 176, p. 33. For example, an announcement dated August 13, 1993, signed by Parnell set forth the new assignments of Claypool and Mattox. Mattox was appointed product supervisor of EPAL linear alcohol, and was given global responsibility for the EPAL business. The announcement noted that although their assignments were effective immediately, Claypool would remain closely involved in the EPAL product line through the third quarter of 1993 in order to facilitate a smooth transition. Plaintiff's exhibit 31. This document is also attached to Demeuse's and Claypool's depositions.
See, Reeves, supra.
One example of conflicting evidence is found in the declarations of Parnell and Demeuse and the deposition testimony of Demeuse. Parnell, Claypool's direct supervisor, stated in his declaration that he was not involved in the decision to eliminate Claypool, and did not learn of it until mid-October 1993. However, Demeuse testified in his deposition that one of the individuals he directly consulted when making his plan to propose to Cook was Parnell because Parnell's area was the most affected. Contrary to Demeuse's declaration, a reasonable inference can also be drawn from Demeuse's deposition testimony that he was involved in the decisions allegedly made by Parnell before the announcement of the RIF. This is consistent with the testimony of Cook and Demeuse that the reorganization and RIF occurred in steps and waves.
Defendants' exhibit 6, Parnell's declaration.
Demeuse's deposition, pp. 78-84.
Demeuse's deposition, pp. 101-108; defendants' exhibit 4, declaration of Rudi Demeuse.
Cook I deposition, pp. 49-57; Demeuse's deposition, pp. 101-108.
Another example is the defendants' conflicting explanations as to why Claypool was not redeployed. Cook testified unequivocally that he tightly controlled redeploying individuals as part of the reduction in force. He testified that one of the reasons that Claypool was not offered another position was that he was viewed as a marginal performer by Demeuse and Parnell. Yet, Claypool was not under Demeuse in the organizational structure until August 1993, and Demeuse did not recall making such a statement about Claypool to Cook. Parnell's declarations do not contain any statements that Claypool was a poor or marginal performer. Leonardi stated in the EEOC response that there were no positions for which Claypool was qualified — Claypool's performance was not mentioned. Leonardi never contacted Demeuse to inquire about Claypool's skills and aptitudes and never met with him to discuss the defendants' response to Claypool's EEOC charge.
Cook I deposition, pp. 205-206; Demeuse's deposition, pp. 177-80; Leonardi's deposition, p. 108.
Cook I deposition, pp. 234-235.
Demeuse's deposition, pp. 201-202, 206-07.
Watson also stated in her affidavit that human resources was not aware of any positions for which Claypool was qualified.
Demeuse's deposition, pp. 179, 205.
Grossheim, 42 years of age at the time of the RIF, was one of four business directors in the olefins and derivatives unit, and held the position of director of polyalphaolefins. Demeuse recommended that Grossheim's position be eliminated. Demeuse stated that Luc Van Muylem was the logical choice for the remaining position rather than Grossheim because Demeuse wanted the head of this business to be in the region with the largest market. The region with the largest market was Europe where Van Muylem's office was already located. Grossheim's position was eliminated and subsumed into the new position for which Van Muylem was selected. According to the defendants, to the extent Grossheim's position or duties were assumed by Van Muylem, or Fred Perkins, these individuals were not substantially younger than Grossheim. Watson stated in her affidavit that at time of Grossheim's separation, the company was not aware of any available business or manager level positions that he was qualified to fill.
Defendants' exhibit 3, affidavit of Martha Watson. Grossheim's date of birth is June 14, 1951.
Defendants' exhibit 3, affidavit of Martha Watson. Watson stated that Van Muylem's date of birth is November 19, 1952, and Fred Perkins' date of birth is December 5, 1951.
Although some or all of the individuals with whom Grossheim compares himself may not have been significantly younger, he has presented evidence sufficient to doubt the legitimate, nondiscriminatory reasons upon which the defendants rely. This evidence generally involves whether Grossheim's position was really eliminated, why Van Muylem was chosen, and why Grossheim was not redeployed. While Watson stated unequivocally that human resources was not aware of any available positions, and Demeuse testified that it was never a question of comparing Grossheim with Van Muylem, Cook gave testimony on these questions which conflicted with both that of Watson and Demeuse.
See, for example, plaintiff's exhibit 35; Cook I deposition, pp. 226-230; Demeuse's deposition, pp. 123-138; defendants' exhibit 6, Demeuse's declaration; Speno III deposition, pp. 40-43; plaintiff's exhibit 10, Speno III-D.
Cook's own testimony was that he tightly controlled the redeployment process.
Defendant's Statistical Evidence
In support of its motions the defendant also relied in part on a declaration and report from its statistical expert Bernard R. Siskin, Ph.D. Defendant's position, which is one of the critical facts underlying Siskin's analysis, is that the only decisionmaker for each plaintiff was the manager or leader of the business unit or department in which the plaintiff worked. Because there is a genuine dispute for trial on the question of who were the relevant decisionmakers involved in the employment decisions at issue, this statistical evidence, alone or in combination with the other summary judgment evidence, is insufficient to establish that the defendants are entitled to summary judgment.
Defendants' arguments and position on this question were also set forth in its motion to exclude the plaintiff's statistical expert. Record document numbers 129 and 130.
See, Record document number 130, pp. 7 and 8 (defendant's listing of the plaintiffs and the decisionmakers it contends were responsible for each plaintiff); record document numbers 156 and 157, defendant's exhibit 2, declaration of Bernard R. Siskin, Ph.D. with Attachment A (report prepared March 1999). Only one reference is necessary, since Siskin's declaration and report were attached to each of the reply memoranda filed by the defendant.
RECOMMENDATION
It is the recommendation of the magistrate judge that the motions for partial summary judgment filed by defendants Ethyl and Albemarle Corporation be granted in part, dismissing the plaintiffs' claims that the defendants discriminated against them in their salaries based on their age in violation of the ADEA and LEDL. All the remaining aspects of the defendants' motions for partial summary judgment should be denied.
Record document numbers 68, 71, 75, 79, 83, 89, 92, 95, 98, and 101.